A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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May 2016

30 May 2016

The long saga of former Chadian dictator Hissene Habre is finally drawing to a close. Today Habre was convicted by the Extraordinary African Chambers, a special internationalized court set up in the courts of Senegal to try Habre and others for international crimes committed during the period of Habre's dictatorship. The court convicted him for crimes against humanity, torture and war crimes (including the commission or ordering of various acts of rape and sexual slavery). He was sentenced to life in prison. There is a 15-day appeal period.

This is a remarkable event, capping off a long campaign by a group of Habre's victims to see him brought to justice, which involved at one point a case brought by Belgium against Senegal in the International Court of Justice, in which Belgium sought to hold Senegal to its obligation under the UN Torture Convention to extradite or prosecute Habre. It is the first case brought before a domestic African court on the basis of the universal jurisdiction principle.

09 May 2016

On April 29 the Supreme Court of Canada issued its decision inWorld Bank Group v. Wallace, a case that was being watched closely by the international community and particularly those engaged in transnational anti-corruption work. The Court ruled that the World Bank's personnel and archives were immune from a production order and subpoenas issued on behalf of two individuals who are being investigated under Canada's Corruption of Foreign Public Officials Act.

A brief backgrounder can be found here, and the headnote to the Court's decision can be found below.

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The World Bank Group is an international organization headquartered in Washington, D.C. composed of five separate organizations, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association (“IDA”). Each constituent organization has its own set of governing documents which set out the immunities and privileges the organization is to enjoy in the territory of each member state.

The World Bank Group provides loans, guarantees, credits and grants for development projects and programs in developing countries. The World Bank Group was originally one of the primary lenders for the project at the heart of this case, the Padma Multipurpose Bridge in Bangladesh. SNC‑Lavalin Inc. was one of several companies bidding for a contract to supervise the construction of the bridge. The four individual respondents — three former employees of SNC‑Lavalin and one representative of a Bangladeshi official — allegedly conspired to bribe Bangladeshi officials to award the contract to SNC‑Lavalin. They are all charged with an offence under the Canadian Corruption of Foreign Public Officials Act.

The Integrity Vice Presidency (“INT”) is an independent unit within the World Bank Group responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. It was the INT that had initially received a series of emails from tipsters suggesting there was corruption in the process for awarding the supervision contract, involving SNC‑Lavalin employees. The INT later shared the tipsters’ emails, its own investigative reports and other documents with the Royal Canadian Mounted Police (“RCMP”).

The RCMP then sought and obtained authorizations to intercept private communications in order to obtain direct evidence of the accused’s participation in corruption, as well as a search warrant. Sgt. D was assigned to prepare affidavits for the application. He largely relied on information the INT shared based on its communications with the tipsters, as well as knowledge of the bidding process of a senior investigator with INT. Sgt. D also spoke directly to one of the tipsters. Sgt. D did not make any handwritten notes of his work as affiant. All of his emails for the period of the investigation were lost because of a computer problem, though many were recovered through other sources.

The Crown charged the four accused under the Corruption of Foreign Public Officials Act and joined their proceedings by direct indictment. The Crown intends to present intercepted communications at trial. For their part, the accused seek to challenge the wiretap authorizations pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. In support of their application, the accused sought an order requiring production of certain INT records, as well as the validation of two subpoenas issued to the investigators of the INT.

However, the Articles of Agreement of the IBRD and the IDA provide that their archives shall be inviolable. In addition, the Articles of Agreement provide that all officers and employees shall be immune from legal process with respect to acts performed by them in their official capacity, except when the IBRD or the IDA waives this immunity. These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.

Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issued by a Canadian court given the immunities accorded to the IBRD and the IDA, and (2) if so, whether in the context of a challenge to the wiretap authorizations pursuant to R. v. Garofoli, the documents sought met the test for relevance.

With respect to the first issue, the trial judge found that the immunities and privileges claimed were prima facie applicable to the archives and personnel of the INT. However, he determined that the World Bank Group had waived these immunities by participating in the RCMP investigation. In any event, he was not persuaded that the documents at issue were “archives”. Moreover, in his view, the term “inviolable” in the Articles of Agreement connoted protection from search and seizure or confiscation, but not from production for inspection. On the second issue, the trial judge concluded that the documents were likely relevant to issues that would arise on a Garofoli application. Accordingly, he ordered that the documents be produced for review by the court.

Held: The appeal should be allowed and the production order set aside.

Notwithstanding its operational independence, the INT’s documents form part of either the IBRD’s or the IDA’s archives, and the INT’s personnel benefit from legal process immunity for acts performed in an official capacity. Because the Articles of Agreement of the IBRD and the IDA provide the legal foundation for the World Bank Group’s integrity regime, and by extension the INT, the immunities outlined in those Articles of Agreement shield the documents and personnel of the INT.

Section 3 of Articles VII and VIII of the IBRD’s and the IDA’s Articles of Agreement, respectively, which confirms that the IBRD and the IDA can be the subject of a lawsuit in a court of competent jurisdiction, is not engaged in the present appeal. The present appeal involves a request for document production directed at personnel of the INT in the context of criminal charges. It is not the kind of action contemplated by s. 3.

Nor are the immunities outlined in ss. 5 and 8 of Articles VII and VIII, respectively, “functional” in the sense that the immunities only apply where it has been demonstrated that their application is necessary for the organization to carry out its operations and responsibilities. The signatory states of the Articles of Agreement set out, in advance, the specific immunities that enable the IBRD and the IDA to fulfill their responsibilities. The very wording of s. 1 of Articles VII and VIII suggests that this was an explicit choice. To import an added condition of functional necessity would undermine what appears to be a conscious choice to enumerate specific immunities rather than to rely on a broad, functional grant of immunity.

As regards the inviolability of the organization’s archives, the trial judge erred in construing so narrowly an immunity that is integral to the independent functioning of international organizations. The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.

The personnel immunity also applies since the challenged subpoenas required Mr. Haynes and Mr. Kim to give evidence. It is uncontested that the INT personnel were performing acts in their official capacity when they obtained the information that the accused now seek. It is also undisputed that the scope of the legal process immunity in s. 8 of Articles VII and VIII shields employees acting in an official capacity from not only civil suit and prosecution, but from legal processes such as subpoenas. While this personnel immunity can be waived, the object and purpose of the treaty favour an express waiver requirement. Given the absence of such express waiver, the trial judge erred in his finding that the World Bank Group waived this immunity.

Even if the World Bank Group did not possess any of the immunities identified in the Articles of Agreement, the production order should not have been issued under the framework for third party production set out in R. v. O’Connor, [1995] 4 S.C.R. 411. A Garofoli application is more limited in scope than a typical O’Connor application, relating as it does to the admissibility of evidence, namely intercepted communications. An O’Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. The Garofoli framework assesses the reasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutory preconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds. What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn.

While the O’Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O’Connor application. To obtain third party records in a Garofoli application an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on such an application. This test for third party production is also consistent with another form of discovery on a Garofoli application: cross‑examination of the affiant. Both forms of discovery serve similar purposes and engage similar policy concerns. The justifications that warrant limiting cross‑examination of the affiant apply with equal force to third party production applications. The “reasonable likelihood” threshold is appropriate to the Garofoli context and fair to the accused.

The trial judge erred in assessing the accused’s arguments. Although he correctly placed the burden on the accused, he did not properly assess the relevance of the documents being sought. In particular, he blurred the distinction in a Garofoli application between the affiant’s knowledge and the knowledge of others involved in the investigation. In this case, that distinction is crucial. While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits, they are not reasonably likely to be of probative value to what Sgt. D knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the INT and other officers. Furthermore, accepting the argument that the INT’s records should be presumed relevant because first party documents were lost or not created, would require a significant change to the O’Connor framework. Such a change is not necessary. Any loss of information must be addressed through the remedial framework set forth in R. v. La, [1997] 2 S.C.R. 680, which may well be the appropriate framework for addressing any prejudice resulting from the World Bank Group’s assertion of its immunities. The accused did not argue these issues on this appeal, and they are best left to the trial judge.